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Civil Procedure Bar Exam Outline

Law Outlines > Oklahoma Bar Bundle Outlines

This is an extract of our Civil Procedure Bar Exam document, which we sell as part of our Oklahoma Bar Bundle Outlines collection written by the top tier of Oklahoma City University School Of Law students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Oklahoma Bar Bundle Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Civil Procedure SUBJECT MATTER JURISDICTION

* State Courts o State courts have GENERAL smj and may hear all causes of action UNLESS there is express statutory authority denying them smj o District Court is the court of general smj in OK

*
So have authority to hear almost any type of case o OK District Courts have CONCURRENT (shared) smj w/ fed courts unless those are committed only to fed

*
BK, Patents, Fed Securities violations

* Federal Courts o Federal Courts are courts of LIMITED smj and may ONLY HEAR & DECIDE

CASES W/IN SCOPE OF THE COURT'S LIMITED SMJ o o

Diveristy of Citizenship

*
Complete Diversity between Plaintiff & All Defendants

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No diversity jurisdiction is ANY plaintiff is citizen of same state as ANY defendant

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Citizenship of Individudal Domicile at Filing*
Physical presence

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Intent to make permanent home or home for foreseeable future

*
Citizenship of Businesses Incorporated Businesses*
Dual Citizenship (so must take account of both in deciding diversity)

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Citizen of all states where incorporated

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Citizen of state where have principal place of business

*
OK: Corporate Headquarters Unincorp Entities (Partnership)*
Citizenship of ALL members "count" for diversity purposes*

o

Minor, decedent, incompetent citizenship counts not personal rep

Amount in Controversy Must EXCEED $75K, exclusive of cost & interestLegal Certainty test* Whatever P claims in good faith unless clear to legal certainty cant recover

* Ie. Contract claim for punitive damages where give aic

*
Wont work cause no punitive damages allowed

Federal Question

*
Arising Under Federal Law

Complaint must show Right or Interest CREATED by or FOUNDED substantially on fed law.

* If fed law just provides the standard of care or conduct, is not enough

*
Most fed questions not exclusive to fed court so can be brought in either court (concurrent smj) Supplemental Jurisdiction

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Allow fed court to exercise jurisdiction over claims that don't have independent fed smj basis so long as a proper jurisdictional anchor

*
Supp jurisdiction controls joinder of claims by parties OTHER THAN Plaintiff in diversity cases
? Supp claim must arise from same T or O as underlying claim Removal

*
Generally
? ONLY ALLOWED BY DEFENDANTS

*
Proper Removal
? Can only remove to federal district court where the case could have been filed there originally by plaintiff

* Where SMJ proper
? D MUST file Notice of Removal w/in 30 days of being served w/ service of process (summons & petition)

* If no answer filed in state court suit, answer due 21 days after served w/ summons or 7 days after file notice of removal (longest wins)

*
Limits on Removal
? Diversity

* Even if complete diversity, no removal allowed if any defendant is a citizen of the forum state.

* Unless have independent Fed Question basis
? Even if diversity issue resolved by dismiss citizen defendant, no removal after 1 year from filing in state court
? ALL DEFENDANTS MUST AGREE TO REMOVEo

o

PERSONAL JURISDICTION

* Exercise of Territorial Jurisdiction o Territorial jurisdiction involves the power of the court over a specific defendant or item of property. SMJ involves courts power over a type of case. In order to issue a proper and binding judgment, a court must have both territorial and subject matter jurisdiction. OK expressly authorizes its courts to exercise jurisdiction on any ground consistent w/ Constitution o

* In Personam Jurisdiction o In personam jurisdiction exists when the forum has power over the person of a

particular defendant and can be established in various manners: o Easy Cases

*
D is present in state when served w/ process

*
D is domiciled in state

*
D consents to jurisdiction

o

*
D waives an objection to jurisdiction Activities (minimum contacts)

*
In State Activities & Specific Jurisdiction Court has personal jurisdiction over a defendant whose in-stateactivities gave rise to the claim asserted by the Plaintiff

*
Driving in state

*
Out of State Activities & Specific Jurisdiction Court has personal jurisdiction over defendant who knows or cananticipate her activities could give rise to a claim in the forum, it was foreseeable Purposefully directing your activities to Ok and those activitiesthen give rise to a claim

*
Unrelated Activites & General Jurisdiction If conduct or business is continuous and systematic w/in the statethen the court may exercise general jurisdiction in a case involving suit on claims that do not arise from the contacts. Treat outsider as if an insiders cause of the amount of theactivities generally going on in state

* In Rem Jurisdiction o Allows a court to adjudicate the rights of all persons WITH RESPECT TO

property located in the state. VENUE

* Federal Venue o Federal venue is determined on a district by district basis o Case may be filed in any federal district court within a state where:

*
Any defendant resides IF all defendants reside in the SAME state

*
Or

*
Where a substantial part of the transaction or occurrence giving rise to the claim took place o OK has 3 Federal Districts

*
Northern in Tulsa

*
Eastern in Muskogee

*
Western in OKC

* Oklahoma Venue o Oklahoma provides that its venue statutes are cumulative and are determined on

a county by county basis o General Rule: START HERE

*
A suit may be brought in any county in OK where Any defendant resides or resided at the time the claim aroseOrWhere any defendant may be served w/ processo Special Venue: Type of Case

*
Automobile Accident: Venue in automobile accident cases may also be brought in anycounty:

*
Where ANY defendant may be served

*

*

o

Or Where the damages were sustained

*
Contract Cases: Venue in cases brought on an open account, a contract for sale ofgoods or services, or an indebtedness is proper also in:

*
The county where the debt was contracted.

*
Ie where K made

*
Property Cases (exception to cumulative rule) Venue in cases to recover real property, for the partition of realproperty, for the sale or property under a mortgage or lien, damage to crops or improvements, and to quiet title are proper ONLY

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In the county where the property is located

*
Doesn't include actions for breach of K to sell or convey prop

*
Then use K provisions & general rule Special Venue: Type of Defendant

*
Non-resident Defendants If ALL defendants are nonresidents, venue is proper:*
Where any claim arose;

*
Where any plaintiff resides

*
Where the non-resident has property or debts owed TO him; or

*
Where the non-resident may be served If any defendant is a resident, venue is limited to where it wouldbe proper as that that defendant

*
Foreign Corporations Suits against foreign corporations may be brought in the county:*
Where the claim arose;

*
Where the plaintiff resides;

*
Where the foreign corp has property or debts owed TO IT; or

*
Where the corporations registered agent may be found

*
Domestic Corporations Suits against domestic corporations may be brought in the county;*
Where the claim arose;

*
Where the corporation has its principal place of business;

*
Where ANY of its principal officers resides or may be served; or

*
Where a co-defendant may be sued.

*
ALL FOR ONE and ONE FOR ALL If venue is proper as to one defendant, then venue is proper as towhole case

SERVICE OF PROCESS

* Process means being provided a summons & a copy of the petition

* Ok Statutory Provisions o Time Limit

*
Must serve process w/in 180 days of filing of petition

*

o

o

If not, deemed waived, unless P can show good cause why not done in 180 day limit Service by Personal Delivery

*
Personal Service on Individual Individuals may be served with process by personal delivery of thesummons and petition to them. Service must be made by either a deputy sheriff or a licensedprocess server unless another person specially appointed Service effective even if refused as long as done correctly*
Substituted Service on Individual Service on individual may be made by leaving the summons &petition at the individual's residence, with a person 15 or older, who also resides there.

*
Corporations & Partnerships Service may be made on the registered agent, or on an officer or amanaging or general agent of the corporation

*
First need try this, if still cant find agent, the may make service on Secretary of State

*
Certified Mail Avail for individuals, corps, partnerships, & state & govorganizations May be mails by plaintiff's attorney, court clerk, deputy sheriff, orlicensed process server MUST be sent by CERTIFIED MAIL w/ return receipt requested &delivery restricted to the addressee

*
Or can do by commercial carrier, like UPS of FED EX, and have evidenced by written or electronic receipt signed by addressee

*
Cert mail okay to individual residence as long as received by 15 or older who also resides there

*
For corp:

*
Effective if received by officer or employee, such as receptionist or mail room employee, WHO is authorized to &
regularly does receive cert mail for corp or gov org.

*
Certified Mail & Default Judgments Where service by mail, default judgment cant be entered UNLESS*
Record contains return receipt showing acceptance by D

*
Or return receipt envelope showing refusal by D Service Refused: Where process is refused, P must, at least 10days before applying for default, mail by 1st Class Mail, a copy of summons & petition & notice that, despite refusal, suit will proceed &
default judgment will be entered unless defend

*
Electronic Except for summons & petition, other service stuff allowedelectronically if attorney or party consents in writing & gives instructions as to how Service by Publication

*
When Only allowed IF:*
P able demonstrate, that w/ due diligence, service can't be made any other way

Publication notice published once a week for 3 consecutive weeks in a legal newspaper in county where petition is filed Notice SHALL state defendants sued & must answer petition on orbefore stated time, not less than 41 days from date of first publication

*
Safeguards P must sign affidavit that service can't be made by other methodDefault Judgment:*
Before enter default based on service by publication, court required determine if P made diligent & meaningful attempt to locate D Setting Aside Default:*
Default based on publication may be set aside w/in 3 years

*
If D acts w/in 30 days of entry, may be set aside by motion

*
If outside 30 days, then must file petition to vacate

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Petition verified

*
Set forth judgment

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Grounds to vacate

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Defense to action

*
Petition & summons must be served as if commencement of action Out-of-State Service

*
May be made by same means for personal delivery, mail, or publication that are authorized by OK and also by any means authorized for service in place where service made

*
Personal service outside OK may be made by anyone authorize to do so in that other stateo

* Federal Service o Relation to State Law

*
Rule 4 incorporates by reference the procedures for service of process

o

under the applicable State & incorporates the states long arm statute

*
In Fed Courts, Nationwide service of process authorized only in certain actions Waiver of Service

*
P may mail to D (first class) a copy of the complaint w/ a request to waive formal service of summons

*
Use of waiver allows D 60 days after mailing of the request in which to answer rather than standard 20 days.

REMEDIES

* Final Remedies o Money Judgments

*
In personal injury case, actual amount paid for medical care is the amount admissible at trial, not the amounts billed for expenses related to the treatment of the party

*
If provider has filed lien in excess of amount paid, that's admissible but not an amount more than the lien o Punitive Damages

*

o

o

2 Step Process where jury 1st classifies nature of d behavior and second, jury determines amount of punitive damages

*
Step One: Classification Category I*
Jury must find reckless by clear & convincing

*
Cap is larger of $100K or amt of actual damages Category 2*
Jury find Intentional & w/ Malice by clear & convincing

*
Cap is larger of $500K or twice the actual damages Category 3*
Jury find Intentional & Malice by clear & convincing

*
Judge finds Intentional & w/Malice beyond reasonable doubt & that engaged in life-threatening conduct.

*
No CAP

*
Step Two: Amount Of Punitive Damages Jury determines amountDefendant's wealth not admissible until this stageInjunctive Release

*
Avail if legal remedies ($) are inadequate

*
Must also demonstrate irreparable harm & that balance of hardships favors injunctive relief Declaratory Relief

*
Authorized in cases of actual controversy

* Cap on Damages in a Civil Action Arising from a Claimed Bodily Injury (RIPE FOR

TESTING) o Economic Loss (actual/hard damages)

*
No subject to any limitation o Non-economic Loss (Soft damages= pain & suffering)

*
May not exceed $350K regardless of number of defendants or number of actions o Exceptional Circumstances

*
No limit on non-economic if JUDGE & JURY find, by clear & convincing, that D's acts or failures were: In reckless disregard for rights of otherGrossly negligent;Fraudulent; orIntentional OR w/ maliceo Verdict & Judgment

*
Jury Instructions Jury not instructed about limits on non-economic, nor shallcounsel for any party, nor any witness inform jury or potential jury about limits

*
Verdict Jury MUST return general verdict accompanied by answers tointerrogatories which shall specify ALL following:

*
Total compensatory damages;

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The economic loss;

*
The non-economic loss; and

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